Reply to: IR35 Inside/Outside same supplier and ways of working? What to do?

[dave748]

I know but it's one reason why I'm glad that I'm a technical specialist rather than a Project Manager, outside of a few consultancies and Microsoft as a whole there is no-one with my exact skillset.

I'm not a project manager, I'm a technical specialist, the project managers they have couldn't deliver a pizza so they gave the all the reignes to deliver the project, as a whole, in whatever manner I choose. I'm also in the same boat, no one else, as far as I know, has the specific skillset and experience that they require to deliver the project. Anyway, I brought it up with them today, they were a bit embarrassed by the situation and said they are going to review it and get back to me. I also spoke to the other contractor in question too, who got the OUTSIDE determination, he's not in the least bit angry, in fact quite the opposite. He's sick of the utter BS coming out of the management team and has other work lined up anyway and said if he was me he'd be doing the exact same thing.

Lets see what happens.

[eek]

Flogging a dead horse comes to mind here

I know but it's one reason why I'm glad that I'm a technical specialist rather than a Project Manager, outside of a few consultancies and Microsoft as a whole there is no-one with my exact skillset.

[northernladuk]

But previously that was based on your judgement and now it's someone else's.

Let's try another viewpoint - you are a PM. Does your current client employ any PMs on a permanent basis? If they do its actually very difficult to demonstrate that you aren't just a temporary replacement of a permanent resource (even if their current need is obviously temporary).. And the existence of permanent staff doing jobs very similar to yours does point to the role needing to be considered as inside.

Flogging a dead horse comes to mind here

[Paralytic]

The reason why the determinations were different is that different people within the same organisation came to a different determination for what is essentially on paper the same role.

What is on paper is largely irrelevant. Are the working practices essentially the same for both roles?

On what basis was your role determined inside. Did they use CEST, for example? If not, what reasons did they provide for saying it is inside?

I think your only option is to give your contract notice, and see if they change their mind. It's at this point you'll see how much they value your contribution.

I'm sure if you want to go legal, you'll be able find a lawyer willing to bleed your bank account dry to represent you, but I'd not hold out much hope for a positive outcome.

[ladymuck]

It's complicated, the "end client" and the department making the decisions are essentially different parts of the same organisation. Working practices go something like this:

"This is kind of what we want, can you project manage it, design it, document it, build it and test it, give it to us when you're are done, we'll kick the tyres and throw it into production."

Tell me that's not OUTSIDE IR35 all day long?

If the end client had engaged your company on those terms then, yes, I'd say that was an outside determination.

As the end client has handed off the work to a supplier then I'd argue that it's the terms on which that supplier (your client) engage with its workforce that is the deciding factor here. How they choose to run the whole project and maintain control, etc over its workforce is what is being assessed, not what the end client asked their supplier to deliver.

Spot the subtle difference?

[eek]

I know what a fixed fee for delivering a project is, there are other means of financial risk than paying for an entire project out of my own pocket which places me OUTSIDE. I've been through several determination questionnaires, and answering honestly about every aspect of my role ALWAYS results in an outside determination. I've never had an INSIDE determination yet.

But previously that was based on your judgement and now it's someone else's.

Let's try another viewpoint - you are a PM. Does your current client employ any PMs on a permanent basis? If they do its actually very difficult to demonstrate that you aren't just a temporary replacement of a permanent resource (even if their current need is obviously temporary).. And the existence of permanent staff doing jobs very similar to yours does point to the role needing to be considered as inside.

[jamesbrown]

I have leverage in the fact that I know I currently hold a lot of cards in my current position. If I walk, or they push me, it would be months to find a replacement and months for someone else to learn my role. Also, the end customer is putting a lot of pressure on the hiring department to ensure no more experience is lost and key contractors are retained.

This is not something I ever wanted to use but, they've pushed me into a corner and made a mistake that I can capitalise on to change the outcome to what it should have been all along.

Well, I guess you'll find out very soon. However, it seems unlikely to me that they "overlooked" your central importance, given a similar role wasn't overlooked. But I guess it's possible. Please report back when you learn more.

[dave748]

Time and materials (which a daily rate is) is not a fixed fee for delivery of the complete finished project where financial risk is passed to the company delivering the project.

Sorry but you really don't have the first clue about what determines whether a contract is inside or outside IR35 if you think a daily rate is a fixed project fee.

I know what a fixed fee for delivering a project is, there are other means of financial risk than paying for an entire project out of my own pocket which places me OUTSIDE. I've been through several determination questionnaires, and answering honestly about every aspect of my role ALWAYS results in an outside determination. I've never had an INSIDE determination yet.

[jamesbrown]

What was "big news" exactly? Dave Chaplin's archive of tribunal judgements? These are IR35 tribunal cases, which are sadly irrelevant to your predicament. These cases were started by HMRC for contractors who claimed they were outside, not by a contractor who disagreed with a client's SDS. Anyway, the clue is in the last dated entry:

> 18 FEBRUARY 2020

As I said, you have no legal avenues, at least no clear ones. By all means, pay someone to tell you the same thing. It sounds like you're having a hard time internalizing that, which is understandable, but Chapter 10 was very much designed by HMRC to increase tax revenue, not to shield unwitting contractors against disguised employment. Eventually, you'll come to terms with this and do what everyone else in your position has done: accept it as is, negotiate a higher rate, or walk.

[eek]

I am project managing it and delivering it on a daily fixed fee basis for my skills. I'm not disputing who makes the determination, I'm disputing the outcome of the determination. Based on what constitutes as an OUTSIDE or INSIDE role, based on all the facts of my actual working practices, even the HMRC determination tools itself, which we all know to be biased towards an INSIDE determination, all say I should be OUTSIDE.

Time and materials (which a daily rate is) is not a fixed fee for delivery of the complete finished project where financial risk for overrunsvis passed to the company delivering the project.

Sorry but you really don't have the first clue about what determines whether a contract is inside or outside IR35 if you think a daily rate is a fixed project fee.

Edit to add - also remember DWP have just paid HMRC £87.9m because they used invalid CEST determinations that created outside IR35 results that should have been inside.

[dave748]

Are you the person project managing and delivering it on a fixed fee basis? if not the decision isn't yours to make

I am project managing it and delivering it on a daily fixed fee basis for my skills. I'm not disputing who makes the determination, I'm disputing the outcome of the determination. Based on what constitutes as an OUTSIDE or INSIDE role, based on all the facts of my actual working practices, even the HMRC determination tools itself, which we all know to be biased towards an INSIDE determination, all say I should be OUTSIDE.

[eek]

It's complicated, the "end client" and the department making the decisions are essentially different parts of the same organisation. Working practices go something like this:

"This is kind of what we want, can you project manage it, design it, document it, build it and test it, give it to us when you're are done, we'll kick the tyres and throw it into production."

Tell me that's not OUTSIDE IR35 all day long?

Are you the person project managing and delivering it on a fixed fee basis? if not the decision isn't yours to make

[dave748]

I still don’t see anything that justifies an IR35 decision especially now you’ve added the fact there is an end client who may be the one making the decisions…

It's complicated, the "end client" and the department making the decisions are essentially different parts of the same organisation. Working practices go something like this:

"This is kind of what we want, can you project manage it, design it, document it, build it and test it, give it to us when you're are done, we'll kick the tyres and throw it into production."

Tell me that's not OUTSIDE IR35 all day long?

[eek]

I still don’t see anything that justifies changing an inside IR35 decision especially now you’ve added the fact there is an end client who may be the one making the decisions…

so now we are clearly playing 20 questions is this other contractor working on the exact same project with your exact skill set and the same end client?

[dave748]

So if the client you're working for needs to retain experience in order to keep the end customer happy then perhaps they should have taken on permanent staff rather than contractors who have a mind of their own. Sounds like they sold a capability they didn't have and the filled it with temps

Sure did, they have many permanent staff, however, not many of them are suitably qualified or experienced and, those that are, are not paid enough to stay.